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anterior it is proper to remark to the stat. 14. Geo. II. c. 20), where tenant in tail previously to his marriage was vouched in a recovery and settled his estate, the existence of the deeds making a tenant to the precipe was presumed after a lapse of sixty years (a).
Another instance, in which the doctrine under consideration has been adjudged to apply, is where land given to trustees in trust to convey at a specified time, as the attaining of majority or the death of a person previously entitled, is delivered into the possession of the cestui que trust at the appointed period, [*]and he and claimants under him, for a considerable number of years afterwards, enjoy consistently with the limitations of the trust : here, provided circumstances do not oppose the supposition, the courts
presume the necessary conveyance to have been executed; it being but reasonable to conclude that trustees, who evidently had in part performed their trust by letting the party into possession, proceeded fully to discharge the confidence reposed in them, and to make the conveyance as directed (b). The same construction seems also to hold in regard to trusts to convey upon or immediately after the completion of previous particular trusts, such as the raising and payment of debts, legacies, portions, &c.; in cases of which kind, if the preceding charges have been long satisfied, subsequent possession according with the terms of the ulterior trust will support an
(a) Anon. 12 Vin. Abr. 57, pl. 7. per Lord Kenyon, 8 T. R. 122,
(6) England v. Slade, 4 T. R. and 2 Esp. Rep. 500 ; and per Sir 682; Doe v. Sybourn, 2 Esp. T. Plumer, 1 Jac. and W. 620, Rep. 496, 7 T. R. 3. See also
inference, that the direction to convey was punctually complied with(a).
But the principle just laid down appears to have obtained a still more extensive operation. On two late occasions, instead of an express trust to convey at an appointed time being considered to form a necessary term in the proposition, a constructive trust was deemed equally efficacious: and the rule apparently furnished by the decisions alluded to is, that where an estate is vested in trustees for a temporary purpose, and no further intention is declared which requires the [*]legal estate to remain outstanding, a trust to re-convey so soon as that purpose is effected arises by implication ; and that taken in connexion with this implied duty, long subsequent possession becomes primâ -facie evidence of the legal estate having been re-conveyed (6)(1).
In Hillary v. Waller (c), which was the first of these cases, and came before the court in consequence of an objection to the title to an estate which the defendant had agreed to purchase, the circumstances were these : By indentures of lease and release, dated in February 1664, Fingreth Hall Farm, the estate in question, was conveyed by Sir Humphrey Mildmay to Henry Mildmay and his heirs, upon trust, (subject to the payment of two life annuities, one to Sir Hum
(a) Wilson v. Allen, 1 Jac. and 12 Ves. 251-2. Walk. 611, 620.
(c) 12 Ves. 239. (6) See per W. Grant, M. R.,
(1) Colden v. Moon, 13 Johns. 513. Stoughtenburgh v. Murray, Johns. 5.
phrey Mildmay, and the other to Lady Jane Catherine, his wife,) as a collateral security to P. Gurdon and A. Knightsbridge for the title of the manor of H., which they had lately purchased; and in the mean time until Gordon and Knightsbridge should be evicted, upon trust to pay the rents to Mary and John Mildmay for their lives successively, and then to such persons as they should appoint; with a further trust, that in case Gurdon and Knightsbridge should not be evicted of the manor of H. before the expiration of eleven years after the death of Sir Humphrey and John Mildmay, or in case there should be such eviction, if Henry Mildmay, his heirs, &c. should not be evicted of the estate in question, [*]then he or they should convey one full moiety of that estate to Mary Mildmay, or if dead, to such persons as she and John Mildmay should appoint. There was no ulterior trust expressly declared as to the other moiety ; but the deed ended with a general declaration, that the assurance thereby made was for a collateral security to Gurdon and Knightsbridge. In 1694, a settlement was made of the Fingreth Hall Farm on the marriage of a daughter of Mary Mildmay, and in the covenant against encumbrances, an exception was made of the conveyance to Henry Mildmay for the purpose of the collateral security. It was also noticed, that Lady Jane Catherine was then still living.—The agreement for sale to the defendant was entered into about the year 1805, and the objection raised under the circumstances was, that, as a re-conveyance of the property from the trustee in the deeds of 1664 did not appear to have been executed, the legal estate must be considered to remain outstanding. But this objection both at the Rolls and afterwards on appeal to
the Lord Chancellor was overruled. Lord Erskine said, “See what the true meaning of the deed of 1664 is. The manor of H. was sold to Gurdon and Knightsbridge. There was to be security against some encumbrances, to have a speedy termination : for such an indemnity as an estate vested in trustees, as an indemnity not only against encumbrances likely to appear speedily, but at the distance of 1000 years, without any specific danger in the minds of the parties, has never occurred. A title is impeached on account of some specific objection, depending upon something to happen within a few years ; [*]and the indemnity must be co-extensive with the objection. The whole of this estate originally was conveyed to Henry Mildmay. That is the infirmity of the case, that the whole was conveyed. The object of the conveyance was, first, to secure the annuities to Sir Humphrey and Lady Catherine Mildmay (the latter continuing alive till 1694); and then this strange clause is inserted, which means, that in case of eviction the trustee should convey one half of this estate to the uses of the settlement. Upon what ground? The whole estate being originally in my trustee, for my indemnity, upon what ground, if I am evicted, is one half to be so conveyed? Through all this obscurity I can see the intention; that eleven years were the expected period of the infirmity of the title, and after that period this moiety was to be conveyed; not the remainder of the estate, for there was another security to be answered. That could not be conveyed till Lady Catherine was dead. A moiety was to be conveyed as there was then an end of the obscurity and infirmity belonging to the title ; but the residue was not to go out of the trustee, as Lady
Catherine was living. I am bound to presume, that whenever the danger of the H. estate was at an end, when that time arrived (which was designated by the period of eleven years), or any period, at which it could be said, there was no more danger, then that estate was to be saleable, and a re-conveyance was to be made. There is an answer then as to the length of time. Am I not to presume that the manor of H. is a good estate to the purchaser. It has not been disturbed for 140 years. If any claim [*]were now set up, is it possible to say such a plaintiff could recover in ejectment? If that could be supposed, would not this court grant a perpetual injunction against him, upon such a title, after uninterrupted possession for 140 years ?" His Lordship, who had before explained the general principles upon which presumptions of deeds and grants are made, added, “Here then is the application of those principles. I presume a conveyance from the trustee of the estate, intended as an indemnity against encumbrances, when for a century and more every idea of an encumbrance has been at an end ; and if these presumptions are made after twenty or thirty years, because the party being out of possession all presumption is against him, I make it in this instance. It would be very different if the intention had not appeared upon the deed. But when the time is designated, viz. eleven years, if I cannot do this at the end of 140 years, it is admitted this objection must continue to any period. By supporting this objection, I should lay down a rule most dangerous, and destroying the very reason of legal presumption. There is a defect and omission in the deed; not providing that when the annuities are satisfied, there shall be a conveyance of the other moiety. My